Long before the abortion right fell, many people lacked meaningful access to reproductive care. Now, state high courts have an opportunity to revisit their constitutional guarantees with vigor and creativity. Instead of mirroring the Supreme Court’s pre-Dobbs conception of the abortion right, these courts can identify a new abortion right—one based on express guarantees of gender equality, which, though absent in the federal Constitution, lies untapped in many state constitutions in the form of an equal rights amendment (ERA).
Drawing on feminist legal scholarship, this Comment first demonstrates the shortcomings of substantive due process—the Court’s former approach to the abortion question—and argues for a state constitutional right to abortion based on feminist principles. Next, this Comment analyzes pre-Dobbs cases in which states used their ERAs to address abortion questions, before offering a proposal for the interpretation of these amendments. The proposed rule proscribes any law that creates or reifies social inequality based on childbearing capacity.
* J.D. Candidate, Stanford Law School, 2023. I am deeply grateful to Jane Schacter for her insights and generous guidance, and for bringing state constitutional law to Stanford Law School. I am similarly grateful to the meticulous and thoughtful editors of the Stanford Law Review, especially Taylor Beardall, Maya Frost-Belansky, Zoë Mulraine, and Anais Carell.